by Rebecca L. Sandefur and Lucy Ricca
Vol. 108 No. 1 (2024) | Harnessing AI for Justice | Download PDF Version of ArticleA new approach to bringing people access to justice “centers the justice experiences of ordinary people, rather than the structure or staffing of justice institutions, the elements of legal families, or the content of laws themselves.”1 This “people-centered” approach requires not just a paradigm shift, but also empirical evidence as a critical tool to redesign systems.
Though evidence-based approaches are standard practice in other fields, like health, they are rare in law. But this is changing. We describe two projects that create regulatory environments to enable evidence-based, people-centered services, each endorsed by its respective state supreme courts: the Utah legal regulatory “Sandbox” and the Alaska Community Justice Worker Program.
Utah’s Sandbox allows legal-services-providing entities to explore new business structures and service models, including services that are technology based, offered by people who are not attorneys, or financed or owned by nonlawyers. Entities in the Sandbox are closely monitored through the regular collection and analysis of service data to ensure that consumers are protected from harm.
In Alaska, the Supreme Court has authorized a statewide legal aid provider (the Alaska Legal Services Corporation) to supervise and train community health and other frontline workers to offer legal advice and representation. Such services meet people and their legal needs in those moments when legal issues emerge as parts of other kinds of life issues, such as those involving access to health care, secure and healthy housing, income, or nutrition.2 The work of these Community Justice Workers would normally violate “unauthorized practice of law” restrictions but in Alaska has been granted a program-specific waiver.3 Evidence on the effectiveness, sustainability, and scalability of this program is being gathered and analyzed through a first-of-its-kind study funded by the National Science Foundation.
Both projects demonstrate the promise of evidence-based regulation to generate right-sized, targeted legal help for life-altering legal issues, provided to people and communities who usually receive no assistance at all.
Americans experience between 150 million to 250 million new civil justice issues each year4 that affect core areas of life and often hamper their ability to make a living, have a place to live, and care for those who depend on them.5 In a country of over 330 million people, diverse in language and culture and spread across a huge geography of communities that range from dense urban areas to tiny rural villages, a monolithic legal profession fails to meet vast unmet legal need. Though the number of lawyers in the United States has increased by 400 percent in the last 50 years, every measure suggests the nation’s crisis of access to civil justice has only deepened.
Many factors contribute to the failures that lock people out of access to their own law; the historically restrictive regulation of legal services is key among them.6 The orthodox regulatory model limits the supply of legal help to that provided by highly educated and costly lawyers. The result is a situation in which corporate and very high-wealth consumers can afford and obtain legal services, while most individual consumers and small businesses cannot7 In response, Utah and Alaska have created new, evidence-based models of designing and delivering legal services.
These new reforms focus on one or both of two key traditional restrictions embodied in the American Bar Association’s Model Rules of Professional Conduct:8
The bans prevent alternative sources of legal help from emerging, including less expensive and more accessible sources provided by technology, other kinds of justice workers, and organizations that are not lawyer-owned. When alternative sources of help exist, many remain in a regulatory “gray space,” with little oversight, consumer protection, or quality assurance. The Utah and Alaska projects are attempts to rethink regulation in order to expand authorized sources of legal help — similar to the earlier transformation of the medical profession, which now incorporates multiple types of professionals and entities.11
Some observers raise concerns about removing regulatory barriers to practicing law and/or financing legal practice.12 They argue that UPL rules and Rule 5.4 are needed to protect the public, and particularly its most vulnerable members, from harm. They argue that outside investment in legal practices will invite a profit motive to the legal profession, undermining the independent legal judgment of lawyers and the quality of legal services.13 And some argue that allowing nonlawyers into legal businesses will not actually impact the gap in access to justice.14 An evidence-based approach, however, can change the terms of the conversation — from a battle of opinions to empirical questions that can be answered with facts.
The old rules of legal-services regulation are traditions: They are not grounded in empirical evidence. In fact, the historical record reveals that these bans have roots in anticompetitive motivations of the organized bar.15 Current debates about them also often proceed in the absence of evidence. The challenge of developing evidence for activities that are unauthorized (in some places, criminally) — and so cannot be performed or tested — is part of the reason that evidence on this issue is so lacking.16
But the evidence we do have demonstrates clearly that people who are not lawyers can perform much of the practice of law quite well and with strong consumer satisfaction.17 Increasingly, evidence also reveals that allowing people who are not attorneys to invest in and/or own legal practices is not harmful to consumers. For example, in England and Wales, which have permitted nonlawyer ownership of firms since 2007,18 consumer satisfaction with legal services is high (84 percent) across the regulated sector, and data suggest little or no difference between these new kinds of firms (known as “alternative business structures”) and conventional law firms.19 And we certainly have evidence regarding the need: Already many consumers do not get legal help from lawyers, and it seems likely that consumers may increasingly turn to alternative sources of help.20
In 2019, the Utah Supreme Court embarked on a “profound[] reimagining”21 of the regulation of legal services, shifting the rules away from restrictive prescription and toward an approach that can more effectively respond to the rapidly changing nature of the legal-services market and the unaddressed needs of consumers. The Sandbox has three key components:22
The Sandbox launched in August 2020.23 The Legal Services Innovation Committee of the Utah Supreme Court administers the Sandbox, while ultimate regulatory authority remains with the court.24 The court itself reviews and votes on each entity that applies for admission.25
Regular submission of detailed data about legal services provided by Sandbox participants gives a clear sense of what is happening with consumers and reveals emerging trends. The Innovation Office, which hosts the innovation committee, publishes a monthly report on Sandbox activity, making these insights publicly available.26 The data show that Sandbox entities are providing an increasing number of services across a range of legal areas, with very low incidence of measured consumer harm.
As of January 2024, 51 entities had been authorized27 and over 75,000 services provided to approximately 24,000 unique consumers.28 Just under 14,000 of those services were delivered by people who were not licensed attorneys or by software.29 Key areas of service include business law services (45.6 percent),30 likely primarily to small businesses, as few entities in the Sandbox serve large corporate clients.31 Other key areas include immigration, veterans’ benefits, end-of-life planning, accident/injury, and marriage and family issues.32
Consumer complaints are part of the required data reporting.33 As of January 2024, the office had received a total of 14 complaints, approximately one per 4,011 services delivered.34 The office determined that nine of those complaints raised potential consumer harms caused by the legal services provided, a ratio of one complaint per 8,468 services. Comparison to consumer complaints about lawyers is difficult, in part because the Sandbox counts discrete (unbundled) legal services rather than cases and in part because there are limited data on harms caused by lawyers. Social scientific studies grounded in expert peer review of lawyers’ work product find that lawyers typically commit impactful errors in one-fifth to one-quarter of cases.35 As of January 2024, entities operating in the Sandbox have responded to all reported consumer complaints “adequate[ly] and acceptabl[y], according to the Utah Office of Legal Services Innovation.36
Underneath these high-level statistics are a variety of companies and nonprofits offering legal services to consumers in new ways. Examples include:
Alaska’s Supreme Court has taken a different approach to permitting innovative practice through evidence-based regulation. In 2022, it was the first in the country to authorize a waiver of UPL restrictions that permits a legal aid provider, Alaska Legal Services Corporation (ALSC), to train and supervise Community Justice Workers (CJWs) — justice workers without law licenses — to offer legal advice and representation.45
CJWs complete focused trainings in specific legal issues and procedures, culminating with handling a case under the supervision of an ALSC attorney. Currently, over 400 CJWs are at work or in training, helping their neighbors in over 40 different communities across the vast and rural state with problems such as denials of SNAP benefits, Indian Child Welfare Act issues, domestic-violence protection orders, and wills. Hundreds of cases have been handled by CJWs, the majority of whom work in remote Alaska Native communities without lawyers and inaccessible by road.
Both the program’s expansion on the ground in Alaska and a study of its effectiveness, sustainability, and scalability are funded through the National Science Foundation’s Civic Innovation Challenge grant program, a research and action funding mechanism that prioritizes “community engagement, transdisciplinary research, and real-world pilots that center communities and their priorities.”46 The research is in its early stages, but so far the program boasts a 100 percent client success rate.47 While the effectiveness of justice work has been empirically explored, this is the first project to center sustainability and scalability of such work, two critical elements of successful access-to-justice solutions in a diverse country with vast unmet legal need.
Both the Utah and Alaska models hold the potential to allow new types of programs to develop and flourish. The Utah Sandbox employs market reforms and entity regulation to create space for new kinds of practice, while the Alaska waiver uses entity regulation to permit new kinds of services. The Utah approach creates an avenue for alternative providers seeking to develop services that use new sources of capital or leverage software and providers who are not attorneys. The Alaska project seeks to inscribe community priorities into the design and delivery of legal services from the ground up, working with members of specific communities to provide linguistically and culturally accessible assistance around basic life issues of nutrition, shelter, and safety.
Though different in their details, these regulatory innovations share similar qualities that are critical if we hope to address an access-to-justice crisis of such extraordinary scale. They:
Both projects are ambitious efforts to rethink regulating legal services in order to increase public engagement, satisfaction, and access. In the absence of federal legislation or litigation resulting in changes of national scope, driving real and scalable impacts on the access-to-justice crisis requires this kind of bold reform across multiple states.
Increasingly, other states are answering this call as well. Several — including Oregon, Colorado, Arizona, Minnesota, New Hampshire, and Texas — either have moved forward or likely will move forward with the licensing of paraprofessionals to offer limited legal services in specific areas of law.48 Programs authorizing legal aid providers or community-based organizations to use different kinds of justice workers to deliver legal services have begun operating in Alaska, Delaware, and Arizona49 and are being explored in several other states.
Of course, challenges remain. The new approaches upend traditional regulation, which attempts to ensure competent and ethical legal services with up-front restrictions on who and what can provide them. The new models replace entry barriers that are grounded in tradition rather than evidence with contemporaneous empirical evidence about actual consumer experience and legal impact. This new way of regulating can be challenging for jurisdictions to pull off. Implementing evidence-based regulation requires skills in research design and data analysis that traditional legal-services regulators typically do not have and have usually not considered how to fund. People-centered justice solutions often de-center lawyers, and so may face resistance from lawyers who fear losing their place as gatekeepers of justice.
But these challenges are worth the effort. And these programs stand as testaments to the judiciary’s willingness to adapt and evolve. By fostering innovation, promoting access, and safeguarding consumers, they exemplify the spirit of progress and give hope for a future where justice is accessible to all.
Rebecca L. Sandefur directs the School of Social and Family Dynamics at Arizona State University and is faculty fellow at the American Bar Foundation, where she founded and leads the Access to Justice Research Initiative. She was named a MacArthur Fellow in 2018 for her work on inequality and access to justice.
Lucy Ricca is the executive director of the Deborah L. Rhode Center on the Legal Profession at Stanford University. She is a national expert in efforts to reform regulation of the legal profession to increase innovation, market diversification, and access to justice.